Missouri Republican Attorney General Bailey sues Media Matters using consumer law to censor the press

An analysis of Mo. Attorney General Andrew Bailey's bogus allegations against Media Matters.

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Image Credit: USA Today Network file photos

Missouri AG Andrew Bailey is sponsoring an asinine ‘crusade’ (allegedly against consumer fraud), while claiming to ‘champion’ the free speech rights of selective billionaires (Elon Musk) and associated white supremacists and Nazi sympathizers. Bailey is suing progressive journalistic watchdog group Media Matters as he seeks to defend social media outlet Twitter–now renamed as–X. Bailey objects to the group pursuing what he calls …”an activist agenda,” against X. The lawsuit accuses Media Matters of ‘activism’, algorithm manipulation and–consumer fraud. One last thing—Media Matters is a journalistic think tank–and a nonprofit.

This lawsuit is ‘selective’ and prejudicial with the Missouri AG abusing the power of his office. Bailey unilaterally decided to attack Media Matters alleging they committed consumer fraud—while he ignored actual systemic consumer fraud being committed by payday lenders in Missouri. (It should be noted that Bailey later accepted campaign ‘contributions’ from those same lenders. While the mere appearance of impropriety is not a criminal offense; it does compromise his credibility. Furthermore, though political bribery has been made technically ‘legal’ by the Supreme Court; it does not mean those pols accepting ‘legal’ bribes are either—ethical or honest).

So, why is the Missouri Attorney General pushing a frivolous lawsuit against journalists while he ignores actual fraud in his state? What is Bailey’s true motive? Is this suit a sneak attack on free press rights guaranteed by the 1st Amendment? Is this a case of political contrivance engineered to further Bailey’s rise in another Trump administration? Is this a government sponsored version of a SLAPP suit meant to silence dissent? How did the state of Missouri become embroiled in an effort to defend billionaire Elon Musk? 

The history of the lawsuit…

Elon Musk began this mess by threatening Media Matters with his own lawsuit.  Media Matters disregarded his threat, so he then filed a lawsuit on 11/20/23.

Musk accused the media watchdog group of defamation and claimed that Media Matters ‘manufactured’ a report meant to …”drive advertisers from the platform and destroy X Corp.”

Contrary to Musk’s silly tantrum; Media Matters produced a report that showed corporate ads from the likes of Apple and IBM, (among others) wholesale positioned alongside hate speech posted by white supremacists and neo Nazis. Media Matters reported the suspicious pattern instigated on X. The documentation proving the claims of their report was solid.

Media Matters’ journalistic pieces resulted in those same corporations warning Musk to either remedy the situation or they would pull their ads. Musk disregarded the warnings and advertisers immediately pulled their content over these concerns.

Media Matters response to Musk…

Media Matters responded to Musk’s initial threat with the following comment; …”Far from the free speech advocate he claims to be, Musk is a bully who threatens meritless lawsuits in an attempt to silence reporting that he even confirmed is accurate. Musk admitted the ads at issue ran alongside the pro-Nazi content we identified. If he does sue us, we will win.” 

Texas AG Ken Paxton attacked…on Musk’s behalf…followed by Mo. AG Bailey…

Texas AG Ken Paxton then announced a fraud investigation against Media Matters–the same day Musk sued. Paxton cited possible violations of the Texas Business Organizations Code and the Deceptive Trade Practices Act as justification. Paxton was …”extremely troubled by the allegations that Media Matters, a radical anti-free speech organization, fraudulently manipulated data on X.com (formerly known as Twitter).” Paxton also stated that they …”are examining the issue closely to ensure that the public has not been deceived by the schemes of radical left-wing organizations who would like nothing more than to limit freedom by reducing participation in the public square.”

Paxton demanded internal confidential documents and Media Matters refused which triggered the lawsuit. It’s not a far cry to hypothesize that Paxton (and Bailey by default) are very aware of Elon Musk’s close relationship to TrumpWorld.  Since Musk took over Twitter, it has become a haven for Trump supporters, white supremacists and neo Nazis. Suing Media Matters for exposing the flood of white supremacists and Nazi sympathizers on X–panders to that demographic. Now, compare Paxton’s actions to that of Missouri AG Andrew Bailey. 

‘Enter stage right’…Missouri AG Bailey copycatting Texas AG Ken Paxton…

Bailey ‘copy-catted’ Paxton when he sent a Notice of Pending Investigation back in December 2023. Bailey more specifically outlined his charges in a Civil Investigative Demand (CID) letter to Media Matters dated March 25, 2024. The CID letter is a direct demand for massive documentation to be used against Media Matters.

Bailey’s “Notice of Investigation” specifically alleged that Media Matters…”falsely and deceptively manipulated the algorithm on X (formerly known as Twitter) through coordinated, inauthentic behavior and that you did so in an attempt to defame the organization and cause advertisers to pull their support from the platform, thus harming free speech.

Sound familiar? Paxton and Bailey are litigating in stereo. 

Manipulating the algorithm, per Bailey’s accusation, previously required access to private proprietary information which an outlet like Media Matters would not possess. (It should be noted that Twitter did release the source code for its recommendation algorithm back in March of 2023, so there is no theft issue as the code was freely offered to the public. In any case, manipulating a social media algorithm is not a crime.

Bailey then accuses Media Matters of lying to the public. To quote from his notice of pending investigation; …”The lawsuit alleges that you lied to the public, falsely suggesting that fringe, extremist content regularly appears next to content from corporate advertisers when in fact the opposite is true. At the same time, you appear to have used this coordinated, inauthentic activity to solicit charitable donations from consumers across the country.”

He further claims that Media Matters may have …”violated Missouri consumer protection laws, including laws that prohibit nonprofit entities from soliciting funds under false pretenses.

Bailey’s final salvo states that…”that Media Matters actions, if proven true, have hampered free speech by targeting an expressly pro free speech social media platform in an attempt to cause it financial harm while defrauding Missourians in the process.”

Like Paxton, AG Bailey is using a consumer fraud statute, namely the Missouri Merchandising Practices Act to criminalize journalism.  Apparently Bailey is claiming that Media Matters committed fraud.  Now, this law is so overly broad that pretty much anything can be considered ‘fraudulent.’ So, how does Media Matters fundraising amount to a violation of the Missouri Merchandising Practices Act?  For that matter, how did Media Matters manipulate the algorithm used on X to perpetrate consumer fraud–as alleged by both Paxton and Bailey? 

The ludicrous algorithm manipulation claims…

The alleged manipulation of a large social media algorithm by AG Bailey–is virtually impossible. Marc Cheong is a Senior Lecturer of Information Systems in the School of Computing and Information Systems at the Melbourne Law School. The University of Melbourne covered this subject in a piece published at The Conversation. To quote Cheong: 

…”algorithms are typically “black boxes” that have their inner workings hidden. It’s in the interests of tech companies to keep the recipe for their “secret sauce”, well a secret.”

Cheong added that,
 
…”trying to “game” an algorithm is like trying to solve a 3D box puzzle without any instructions and without being able to peer inside. You can only use trial-and-error–manipulating the pieces you see on the outside, and gauging the effects on the overall state of the box.”

So, the odds are against any algorithm manipulation bent to some journalist’s will. Cheong also explained that,

…”Even when an algorithm’s code is revealed to the public–such as when TWITTER released the source code for its recommender algorithm in March—it’s not enough to bend them to one’s will.”

Cheong added that,

…”Between the sheer complexity of the code, constant tweaks by developers, and the presence of arbitrary design choices (such as explicitly tracking Elon Musk’s tweets), any claims of being able to perfectly “game” an algorithm should be taken with a pinch of salt.”

In fact, if Missouri AG Bailey is implying that Media Matters somehow illegally obtained algorithm code for X–he would be looking at a possible contempt charge, as Twitter released the source code for its “recommendation algorithm” in March of 2023. So, once again, there is no conceivable crime here–other than prosecutorial abuse of office. 

Bailey’s fraud accusations fall flat…

Exactly how did Media Matters commit …”fraudulent monetary solicitation?” Since the nonprofit does not sell commercial space or any products; where is the alleged loss suffered by Missouri? By Bailey’s own admission in his suit; Media Matters has not committed this crime as described in the Missouri Consumer Fraud Guide.

 Bailey’s abuse of the MMPA (Missouri Merchandising Practices Act) is the key to this suit–the litigious hatchet used to indirectly attack the 1st Amendment. Ironically, Bailey has claimed the mantle of a free speech warrior. So, what are the key elements of the MMPA–and why is Bailey using this tool?

There are four key elements to a valid MMPA claim and they are as follows: 

1.)”it involves the purchase, advertisement, or solicitation of “merchandise”, 
2.)the good or service over which the claim is emanating was for personal, family, or household purposes, 
3.)the plaintiff has suffered an ascertainable loss of money or property, and 
4.)this loss was a result of an act, committed before, during, or after a sale or advertisement that was unlawful.”
 
It’s unclear what ‘merchandise’ Media Matters was selling. It is more unclear who the actual plaintiff is. Since AG Bailey represents the state of Missouri, then Missouri should be the plaintiff. So, what tangible loss did Missouri suffer? Now, Bailey (wrongfully) claims that Missourians suffered a loss of free speech rights due to the monetary losses X absorbed in the past few years. There is no tangible evidence proving his contention. Bailey also implies that X is the sole social media platform available to Missourians. I can assure Mr. Bailey that many of us can easily live without X.
 
Bailey also forgot the few exceptions to the MMPA. Fortunately, multiple law firms did not suffer such an ethical oversight. While any …”person, firm, or corporation utilizing fraudulent, or deceptive, practices, as defined previously, in advertising, soliciting, or selling “merchandise” can be a defendant in an MMPA claim”; …”there are two primary exceptions.”

Insurance companies are exempt, ironically enough. So, insurers selling fraudulent and worthless ‘Medicare Advantage’ plans can’t be held accountable under the MMPA. The other exception covers the owner or publisher of a newspaper or radio station if they publish ‘deceptive’ advertisements or solicitations …”without knowing or shared intent with the advertiser.”

Now, it seems that journalists would be exempt, including journalistic think tanks such as Media Matters. So, why is AG Bailey pursuing this prosecution which clearly lacks merit under the MMPA law? Again, is Bailey trying to use this frivolous complaint as a test case to criminalize journalists who refuse to publish MAGA propaganda? Is this the Attorney General’s version of an illegitimate SLAPP suit–funded by Missouri taxpayers?  Is this an end run around the 1st amendment…?

Now, historically, fellow republican Donald Trump has made no secret of his animosity towards a free press. If Bailey is one of several state level Attorney General’s working to possibly criminalize a free press; the easy way around the 1st Amendment is to claim various news outlets are committing fraud. A charge of fraud could rapidly bankrupt most independent news outlets in short order, even if acquitted. 

Missouri AG Bailey’s attack on free press…

Though this story focuses on the Media Matters lawsuit; the questionable behavior of MAGA styled state attorney generals’ remains central to a perceived pattern of biased political prosecutions. Now, Trump himself constantly whines about ‘political prosecution’ even when he’s caught and the evidence demonstrates criminal activity. That is not the hallmark of a ‘political prosecution.’ 

AG Bailey has a record of ‘selective’ prosecution, targeting liberals and minorities as seen in his vocal defense of Elon Musk. Since Musk purchased Twitter, (now X), the incidence of white supremacist and neo Nazi sentiments has exploded exponentially.

Bailey also has a history of frivolous lawsuits…

Missouri AG Andrew Bailey is no stranger to frivolous lawsuits, especially if those lawsuits censor the free speech/free press rights of MAGA opponents–all the while posing as a ‘free speech warrior.’ 

Bailey joined one such lawsuit filed by multiple republican attorney generals–against Target. Apparently, these AG’s (including Bailey) were offended by Target’s sale of LGBTQ+ friendly merchandise. Now, Target wasn’t selling sex toys or ‘how-to’ manuals; they were selling onesies, baby bibs, overalls, t-shirts sporting slogans such as “Girls, Gays, Theys”—and swimsuits offering ‘tuck-friendly construction’ for male genitalia.

Bailey and the other AG’s also objected to…”[P]roducts with anti-Christian designs such as pentagrams, horned skulls, and other Satanic products…[including] the phrase ‘Satan Respects Pronouns’ with a horned ram representing Baphomet–a half-human, half-animal, hermaphrodite worshipped by the occult. https://aricohn.substack.com/p/republican-ags-free-speech-hypocrisy

Bailey, (along with the other republican AG’s involved in the suit), signed off on a threatening letter that cited various child protection and parental rights laws which regulate the …”sale or distribution …of obscene matter.

The letter also threatened Target’s support of an LGBTQ+ organization. What Bailey ‘forgot’ was the inconvenient fact that while some may findTarget’s merchandise insulting–it is protected under the 1st Amendment. Ironically, when Bailey sued Media Matters–he had no such concerns over the white supremacist and neo Nazi content found on X.

Now, Bailey has attacked the journalists at Media Matters–still pontificating on his ‘free speech warrior’ status.  Both Paxton’s and Bailey’s attacks on Media Matters pose direct 1st Amendment violations on their part. So, are the fraud accusations an ‘end run’ around protected speech in the free press? Both AG’s filed charges of fraud against Media Matters–while simultaneously attacking the content of Media Matters speech. 

Thankfully, a federal judge slapped down Paxton’s suit. Could Bailey be next?..

Just this week US District Court Judge Amit Mehta halted Paxton’s probe for internal documents by granting an injunction. The judge cited evidence of “retaliatory intent,” on Paxton’s part.

Click to access.

Judge Mehta stated that Media Matters investigative reporting are ..”core First Amendment activities,” and further stated that any …”loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” The judge then halted Paxton’s illegal demand to obtain Media Matters confidential documents. 

Media Matters published a statement on this win. 

To quote from the statement: …”Elon Musk encouraged Republican state attorney generals to use their power to harass their critics and stifle reporting about X. Ken Paxton was one of those AGs that took up the call and he was defeated. Today’s decision is a victory for free speech.”

Questions for Bailey…

In the interest of fairness I contacted Bailey’s Communications Director Madeline Sieren. I sent questions via email on 4/9/24 and received a response 4/11/24. My questions largely dealt with the fraud allegations. Sieren responded by lifting a cursory statement from Bailey’s web page. To quote SIeren;

…”Missourians are entitled to a marketplace that is free of fraud and deception. Under the Missouri Merchandising Practices Act (MMPA), Attorney General Bailey is tasked with the authority to protect that marketplace. Based on serious allegations of false and deceptive behavior on the part of Media Matters, he has launched an investigation to ensure no Missourian has been harmed.” (Email from Madeline Sieren 04/11/24) 

Neither Bailey nor his reps offered any tangible proof of their allegations to date. I had one last question for Bailey, namely–is this suit against Media Matters a test case engineered to criminalize journalism that fails to publish MAGA propaganda? Since journalists and radio stations are exempt from the MMPA’s provisions; this seems to be a relevant question. (Sent to Communications DIrector Sieren via email 04/11/24) 

Sieren’s response was predictably that…”Media Matters is a non-profit, not a news organization.” (Email response from Madeline Sieren 04/11/24) Apparently she hasn’t learned that …”two things can be true.” 

These prosecutions of a journalistic outlet such as Media Matters are clear 1st amendment violations. As an officer of the court for the state of Missouri, Mr. Bailey is sworn to uphold the law without undue privilege or prejudice. Even the mere appearance of prosecutorial impropriety should trigger an in depth investigation into the attorney general and those who seek to enrich his political future. 

His pattern of selective prosecution is particularly relevant as Bailey is running for a full term. Now, Andrew Bailey is no stranger to political prosecutions in service of MAGA. He has attacked the rights of transgender minors and adults, ironically once again, using the consumer fraud law as his weapon of choice. A year ago, Bailey pushed to limit gender affirming care for minors–and consenting adults.  Apparently, Bailey believes Missourians are too feeble minded to make personal decisions–whether those decisions entail critical medical issues–or what to read. 

Furthermore, Bailey’s office has decided that they have the power to determine which media outlets are actual news organizations, even though no such power is granted to attorney generals under the constitution. The very idea that any attorney general can dictate who is a journalist entitled to 1st Amendment protections–and who isn’t–constitutes an ‘obscene’ abuse of power. 

Personal message to Mr. Bailey…

Mr. Bailey, you have declared open season on hunting bullies.  I personally know of one specific bully intimately involved in multiple conflicts of interest. An individual so steeped in hypocrisy, they use propaganda in spectacularly ham-handed ways, in a desperate quest for power. This person has dedicated a personal crusade against the speech and press protection of the 1st Amendment. I can help you find this dastardly hypocrite. 

Just look in the mirror. 

FALL FUNDRAISER

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